How quaint the ways of Paradox!
At common sense she gaily mocks!
Though counting in the usual way,
Years twenty-one I’ve been alive.
Yet, reckoning by my natal day,
Yet, reckoning by my natal day,
I am a little boy of five!

-The Pirates of Penzance, “When You had Left Our Pirate Fold”

In Gilbert & Sullivan’s The Pirates of Penzance, Frederic was apprenticed to a pirate (his nursemaid misheard “pilot”) until he reached twenty-one. He was born, however, on February 29, leap day. Thus, when he had lived twenty-one years, he had only celebrated five and a quarter birthdays, and a quandary ensued as to whether Frederic was liberated from his apprenticeship.

Last night, the U.S. Department of Labor posted the following during the Oscars:

The problem, however, is that statistics without context are meaningless. Simply looking at the numbers doesn’t tell the whole story. By the same token, I can truthfully write that, on average, women suffer 75% of the number of fatal workplace injuries men do. That is, relative to hours worked, women accounted for 43% of workplace fatalities and men 57%. (43/57 is approximately 75%) But that’s even accounting for hours worked. Otherwise, women died at work only 9% as much as men. If you want workplace equality, I guess a few lucky ladies will have to step up and volunteer to suffer some more workplace fatalities.

Except, of course, this doesn’t tell the whole picture. Take a look at the deadliest jobs. Men tend to choose those jobs disproportionately, thereby putting themselves in risk of greater harm. But looking at the raw numbers alone doesn’t paint a full picture–if women chose those professions at equal numbers, worked equal hours, and took equal risks, then we’d probably have fatality equality.

The same issues arise in looking at the wage gap. A 2009 US DOL commissioned study reported no significant gender-based wage gap when you control for profession, work history, hours worked, etc., that is, the choices made by workers. Other studies do find some residual, unexplained gender gap–but that is what our focus should be on–fighting specific instances of discrimination. Otherwise, if the DOL were truly serious about fighting the 79% figure, they should be advocating against women as caregivers, against women choosing to study the humanities, and against women who won’t work weekends, and training women to be orthodontists and petroleum engineers. But, piloting the false 79% narrative is statistical piracy.

The law and business are never as neat and clean as you might hope. One of the toughest problems is when two things are happening around the same time and they start to implicate each other.

In law, we have the maxim “post hoc ergo propter hoc” (after this, therefore because of this) as a known logical fallacy; correlation does not imply causation. The Fifth Circuit wrote: “courts must not allow evidence of temporal correlation to serve as a substitute for science-based causation evidence.” Huss v. Gayden, 571 F.3d 442, 459 (5th Cir. 2009)(relating to a claim that a medication caused cardiomyopathy).

In law, we also have a thing called a “temporal nexus”. In Star Trek: Generations, a plot device was the “Nexus”, a temporal anomaly that permitted Captains Kirk and Picard to meet. It is used, for example, to prove unlawful retaliation after engaging in protected activity. See, e.g., Mickey v. ZeidlerTool and Die Co., 516 F.3d 516 (6th Cir. 2008). A good summary of that case is here. How can law have both? Not easily.

Let’s say your employee, Pat, suffers an injury at work while trying to avoid a supervisor’s sexual advances and then files a workers’ compensation claim, files an OSHA complaint, files an EEOC complaint over the harassment, and seeks a reasonable accommodation. And, let’s say Pat’s attorney also gets the idea Pat was misclassified, so FLSA claims are brought as well. Disciplining, including firing, an employee for doing any of those things will typically constitute unlawful retaliation. However, during the course of your investigation, you determine that Pat’s supervisor, Jan, admitted to the conduct, but that it was because Jan saw an opportunity to take advantage of Pat because Pat was going to be fired for poor performance/breaking rules/a real legitimate cause and hoped to trade sex for keeping the job.

Pat deserves to be fired. [So does Jan.] How do you fire Pat now without facing a host of additional charges?

Document. Document. Document. And cross your fingers.

If Pat truly was to be fired, there should be records of whatever Pat did or didn’t do. If there aren’t, get witness statements. If you can’t get those, perhaps rethink firing Pat until you have new cause: it might not be desirable to keep Pat, knowing what you know, but it may be worth the risk. Pat also knows the jig is up, so perhaps it won’t happen again (on the flip side, Pat may feel overconfident, extra-protected in light of the retaliation claim prospects).

If you don’t have proof, change your procedures to ensure you can prove such a thing going forward. However, you should ensure you are complying with state law privacy requirements.

If you do have proof, there are two options: fire Pat now, and invite a temporal nexus retaliation claim, or wait to fire Pat and argue that your delay is not evidence that Pat’s misconduct wasn’t really worthy of termination (while you invoke the maxim “post hoc ergo propter hoc”). And make sure the reason for termination is given and make it known you can prove it.

What if the misconduct happens after the employee engages in protected activity? As Zeidler Tool demonstrates, the best thing is to hope that the misconduct isn’t immediately after the protected activity occurs. The more time passes, the less that the temporal nexus alone will be sufficient proof of retaliation.

And, of course, review your employment policies, insurance policies, and severance agreements, as those will certainly come to bear.

Plenty of employers let go of an employee and give them some prefabricated separation/severance agreement, hoping to pay the now disgruntled former employee to go gentle into that goodnight. They go online and download a model or ask their payroll company or just use what they used last time, without considering what’s in it.

From time to time, it is good to review and understand what is in these agreements. Are you protecting against unknown workplace injury claims? Are you ensuring that your employee won’t try to use your trade secrets against you? Have you thought about references and nondisparagement? Does it contain any language the EEOC might find problematic?

Beyond these issues, however, is one that pops up regularly: the 21/7 (or, worse, 45/7) provision. These provisions permit the former employee 21 days to review a separation agreement and, then, up to seven days to revoke it, even after they signed it.

Why on Earth would you want to drag out the process or let the employee back out?

The reason provisions like this have crept into separation agreements is because of overbroad releases. Lawyers for employers want to make sure their client are protected from every conceivable claim an employee might bring. So, one of the claims released is potential claims under the Age Discrimination in Employment Act (ADEA). This act prohibits discrimination on the basis of age. Unlike any other release, another Federal law, the Older Workers Benefit Protection Act (OWBPA), requires that, for the waiver to be effective, it must give 21 days to consider (45 days if part of a reduction in force) and 7 days to revoke. But, the ADEA only applies to workers 40 and over.

So, when you want to fire the 23 year old, 35 year old, etc., why do you care if they waive claims under the ADEA? They aren’t eligible to bring them in the first place. Even with older workers, you might want to weigh the risks of an age claim (even an unsuccessful one) against the benefit of a quick resolution of the case. For example, if you really think that a sexual harassment claim might be coming, not age, a quicker settlement helps you close the books, rather than letting the employee get second thoughts once he/she has been a few weeks out of work. And careless negotiation over material terms may even restart the 21 day clock with each new offer.

Just because it looks like a standard separation agreement doesn’t mean you should use it.

By now, you have probably heard that Simon Tam won his case before the Federal Circuit regarding his attempt to register a trademark for his band “The Slants”. (Disclosure: Randazza Legal Group represented the First Amendment Lawyers’ Association as amicus curiae in that case and was recently co-counsel with Mr. Tam’s lawyers, Ron Coleman and Joel MacMull, on another matter.) In short, the Federal Circuit Court of Appeals found that the denial of registration under the Lanham Act’s prohibition of the registration of “disparaging” marks did not survive strict or intermediate scrutiny under First Amendment analysis. I leave it to others to provide an analysis of the holding.

I’m more interested in something that appears on page 9 (page 107 of the PDF) of the dissent of Circuit Judge Reyna. In it, Judge Reyna (who happens to have been a former president of the Hispanic National Bar Association) offers up the following as a permissive government regulation of disparaging speech: a restaurant named “SPICS NOT WELCOME”. Judge Reyna notes that Title VIII of the Civil Rights Act of 1964 bans advertising with a discriminatory preference and discusses how (the better known) Title VII bans harassing speech in the workplace. He then writes that the government interest in avoiding disparagement, such as that with demographically discriminatory content, outweighs the burdens on speech.

With Judge Reyna in the dissent, something to consider is what would be the implications of a restaurant named “SPICS NOT WELCOME”. Prof. Eugene Volokh has explored the conflict between First Amendment law and harassment law. Judge Reyna’s example sets it up nicely. Let’s assume an entrepreneur named a restaurant “Spics Not Welcome” and registered that trademark. Let’s also assume that the restaurant does not actually discriminate against persons of Hispanic origin (for the hypothetical, let’s presume the restauranteur hates spices, but has a spelling problem and forgot the “e”).

Presumably, the name would dissuade both potential consumers and job applicants of Hispanic origin and would be deemed to violate the Civil Rights Act under present jurisprudence. So, on the one hand, you can register and use a disparaging mark under the First Amendment, but on the other, it is prohibited as being discriminatory. Which one stands? And, even though the trademark matter was decided on constitutional grounds, that does not mean that the government interest analysis is the same. Of course, it may be argued that it is the same analysis and down goes harassment law.

If not, can you have a registered trademark you are not allowed to use? Does trademark law trump civil rights law or vice versa? Since the Lanham Act predates the Civil Rights Act, perhaps the latter trumps. I’ll have to look into instances where an offensive mark was deemed unlawful harassment and update this post.

Now, I don’t recommend naming a restaurant “Spics Not Welcome”. But what if The Slants needs a new drummer–can a non-asian apply? Would they feel harassed or precluded by the name? It’ll be interesting to see how the law develops.

The Americans with Disabilities Act protects three categories of individuals: those presently disabled, those previously disabled, and those perceived to be disabled. The latter is deemed “regarded as”; it does not require the member of the protected class to actually have or have had a physical or mental impairment that substantially limits a major life activity. This is the only statute explicitly providing for “regarded as” protection. However, caselaw seems to be filling the gaps in other laws.

In Macy v Holder, the EEOC explicitly found that discrimination against transgendered individuals is unlawful under Title VII, discussing the difference between sex and gender. It also reviewed cases finding that failure to conform to gender stereotype is actionable discrimination. Of note, Title VII does not speak to gender.

Recently, in EEOC v Abercrombie & Fitch, the Supreme Court ruled that where an employer perceived that an employee might require a religious accommodation, even if that perception is wrong, and discriminates against the employee on the basis of that perception, such discrimination is unlawful under Title VII. In that case, as you may recall, a Muslim job applicant was perceived to potentially need a modification of the dress policy, even though the employer disavowed actual knowledge of the need. For all intents and purposes, it is now deemed unlawful to discriminate on the basis of being regarded as having a specific religious belief if the motive is then to deny a reasonable accommodation to that belief.

Taking it a further step is the case of Rachel Dolezal who regards herself as African American. Let’s assume she is actually Caucasian. If she applies for a job and is denied because she is perceived to be African American, does she have a claim? She has not been discriminated against on the basis of her actual race. However, she might have a claim based on color, as Title VII does cover both “race” and “color”. But, she could lose if the employer replaces her with another bronzed or tanned Caucasian–“color” might not be sufficient. Yet, expanding on Macy and cases cited therein, Ms. Dolezal may be viewed as not conforming to racial stereotype. Thus, a white person, regarded as being black, might have an actionable claim. And, if so, others may have actionable claims for not being white, black, asian, hispanic, or native american “enough“.

The law is ever changing and what is common may, at some point, become unlawful (or already is without folks realizing it). Recent developments in statutory law and enforcement actions in existing law have really made me think about all of those clauses that commonly appear in agreements with former employees, whether as part of a severance agreement or as a settlement of claims.

For instance, many of these agreements include a confidentiality clause that prohibits the former or soon-to-be former employee from disclosing how much is being received in severance or settlement. Many of these agreements contain new restrictions on the disclosure of trade secrets (or reaffirmations of prior such covenants), including personnel practices and wage scales. Many of these agreements contain nondisparagement clauses prohibiting the employee from saying anything that might be deemed as negative against the employer. Each of these may be or may soon be unlawful.

As noted by Connecticut attorney Dan Schwartz, the Connecticut legislature just passed a bill that prohibits employers from taking action that would bar an employee from disclosing his/her wages or that of another employee. As noted therein, “wages” means “means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation”. Certainly, to the extent severance or settlement represents such compensation, the law could be read to make settlement/severance payments that were confidential now free and open. It also would render inapplicable any trade secret clause that prohibits disclosure of a wage scale or other compensation basis. In fact, in the situation where there was a confidential settlement, where the claimant employee settled for, perhaps, too little, and thus wanted confidentiality, another employee with knowledge might now be free to publicize the settlement amount.

But wait, you might ask, the law says “employee”, not “former employee”, so isn’t that inapposite? Not necessarily. In Robinson v. Shell Oil, that noted liberal Justice Clarence Thomas, writing for the Court, held that “employee” for Title VII purposes, included “former employee” in order to effectuate anti-retaliation policy. Connecticut courts may follow this rationale, and other states may adopt similar legislation.

That said, some of these provisions may already be unlawful nationwide. Last year, the EEOC challenged CVS severance provisions that, among others, included nondisparagement clauses and prohibitions on disclosing personnel information. CVS won, but on a technicality, not substantively. And the NLRB has found success in the 5th Circuit in the Flex Frac Logistics case, where a ban on discussing “personnel information and documents” interfered with employee section 7 rights to discuss wages with coworkers and non-employees. As a hypothetical, imagine that the former employee wants to get hired as a union organizer to organize the workforce of the employer–the nondisparagement, nondisclosure, confidentiality clauses of a severance or settlement would likely interfere with the ability to organize and would probably not survive.

These clauses are very common, but likely are not long for this world. In the interim, employer counsel may want to rethink the standard severability clause. Although employers are certainly keen on obtaining as much a release as possible, it may be time to reconsider whether the agreement should survive if the former employee can simply ignore these clauses. This also might not bode well for former employees, as employers are apt to pay less in severance/settlement if the amount will be subject to public scrutiny.

Gentlemen, start your engines. The city of Indianapolis is facing a lawsuit arising from competing disability claims. In one corner, a person using a service dog to help them with their disability (while the typical scenario is the seeing-eye dog, apparently this is a paprika-sniffing dog). In the other, a person with a dog allergy.

The Americans with Disabilities Act (along, likely, with the Indiana state law equivalent), in a nutshell, requires employers to not discriminate against employees in the terms and conditions of their employment on the basis of a disability, so long as the employee can perform the essention functions of their job with or without reasonable accommodation. Here is where it gets sticky. Let’s first assume both employees in question are disabled within the meaning of the statute, which they likely are as they suffer from physical impairments (exposure to specific allergens) that substantially limit a major life activity (e.g. anaphylaxis preventing breathing in severe reactions). Using a service dog or preventing dogs in the workplace are both likely reasonable accommodations. Problem is, these are mutually exclusive accommodations.

Of course, there is an escape clause: employers are not required to make an accommodation, even if reasonable, if it otherwise would impose an undue hardship. Here, if the dog-allergy employee (DAE) is valuable, the employer could state that it would be an undue hardship to permit dogs as it would cause the loss of services of the DAE. It is an affirmative defense that the employer would have to prove, though it may be conflated with the reasonableness of the paprika-allergy employee’s (PAE’s) request. Also, employers are not required to provide the most reasonable accommodations, or the best reasonable accommodations, but rather one of the list of possible reasonable accommodations.

In the choice between DAE and PAE, the employer is free to choose DAE. However, the inquiry does not end there. The city apparently offered her only her job w/o dog or unpaid leave, neither of which are reasonable. What about a transfer of position or location that could accommodate both? Cities are usually sufficiently spread out to permit such an accommodation, so long as there is no conflict with civil service laws or collective bargaining agreements. So, PAE may yet have a case; in the meantime, she should be eligible for unemployment benefits.